Judicial modesty in action, Part Two

In my first post about today’s Supreme Court decision in Northwest Austin Utility District Number One v. Holder, I described how the Court, in a major act of “judicial modesty,” avoided striking down the preclearance provision of the Voting Rights Act (Section 5) despite the fact that a majority of the Justices seemed convinced that this key provision is unconstitutional. In this post, I’ll consider where things stand as a result. (I recommend reading my first post first).

There can be little doubt that the Court’s five non-liberal Justices — Roberts, Scalia, Kennedy, Thomas, and Alito — would find Section 5 unconstitutional if presented with a case in which the plaintiff cannot “bail out” of preclearance by the federal government. Given this reality, several questions arise. One of them is: what happens if one of these Justices is no longer on the Court when such a case arrives and has been replaced by an Obama appointee?

At first blush, it might seem that the loss of one non-liberal Justice shouldn’t matter much. After all, the four liberal Justices signed the Chief Justice’s opinion without so much as a separate concurrence, even though the opinion contains a detailed discussion of the constitutional problems with Section 5. On reflection, though, it’s far from clear that any of the three liberals who will remain on the Court following Justice Souter’s retirement would actually find the preclearance provision unconstitutional if push came to shove. They are on record that serious concerns exist about the provision’s constitutionality, but they are not committed to the position that it is actually unconstitutional.

The question then becomes: how quickly will a proper challenge reach the Supreme Court? The natural plaintiff, as Tom Goldstein points out, is a jurisdiction that is unable to “bail out” from the statute’s coverage yet does not have a reasonably recent history of bad acts. But many jurisdictions with a good recent history will be able to bail out, especially following today’s ruling. To be sure, there is no requirement that a jurisdiction attempt to bail out before challenging Section 5, but it might take a particularly aggressive jurisdiction to make a pre-bailout challenge.

Indeed, it might take a pretty aggressive jurisdiction to challenge Section 5 at all. These days, few politicians wish to do anything that might alienate minority voters. (That, of course, is why the preclearance mechanism is an anachronism). Indeed, virtually no jurisidiction was willing to file an amicus brief in support of the plaintiff in the case decided today.

In short, it’s not clear to me that the next meaningful challenge will come along any time soon. I should note, however, that Roger Clegg, who follows these things closely, seems optimistic about the prospects for a reasonably prompt new challenge.

My final question is: will Congress try to “fix” Section 5? This was probably the Supreme Court’s hope, as it signaled to Congress that if it won’t do a fix, the Court will invalidate the provision. Tom Goldstein discusses how Congress might go about attempting to fix Section 5.

A rational Congress would get to work straight away. Whether this Congress will do so may be another matter. One can imagine that the doctrinaire liberals who dominate on the Democratic side might resist tampering with Section 5 — an anachronism, as I said, but also a sacred cow — notwithstanding the non-binding (so far) say-so of John Roberts. The Chief Justice made it easier for Congress to act rationally by bringing along Justices Stevens, Breyer, Ginsburg, and Souter. But will even that be enough to put the unpleasant technical task of Section 5 reform on the front-burner of our liberal Democratic Congress?